Summary
The United States Court of Appeals for the Second Circuit partially reverses, partially affirms, and remands Akayed Ullah’s criminal judgment arising from a 2017 subway-tunnel bombing in Manhattan. The court reverses the conviction under 18 U.S.C. § 2339B because the evidence did not establish that Ullah provided material support to ISIS under the statute’s personnel or service theories. It affirms convictions under 18 U.S.C. § 1992(a)(2) and § 924(c), concluding that the evidence supported the mass-transportation conviction and that any potential Yates error concerning the predicate crime of violence did not affect substantial rights.
Topics
Practice areas
Questions Presented
- Whether the evidence was sufficient to prove that Ullah provided or attempted to provide material support to ISIS as personnel or a service under 18 U.S.C. § 2339B.
- Whether carrying a destructive device affixed to one's person while boarding and riding a subway constitutes placing the device in, upon, or near a mass transportation vehicle under 18 U.S.C. § 1992(a)(2).
- Whether the government's reliance on the subway-placement theory constructively amended the indictment as to Count Five.
- Whether the completed offense under 18 U.S.C. § 2332f(a)(1)(A) is a crime of violence supporting a conviction under 18 U.S.C. § 924(c).
- Whether any Yates error arising from potentially improper predicate offenses affected Ullah's substantial rights, and whether the sentence was procedurally or substantively unreasonable.
Holdings
- The evidence was insufficient to sustain Ullah's Count One conviction under either the personnel or service theory because his independent, lone-wolf attack, even though inspired by ISIS propaganda and intended to advance ISIS's goals, was not coordinated with or performed under ISIS's direction or control.
- A person places a destructive device in, upon, or near a mass transportation vehicle by affixing the device to the person's body and boarding and riding the vehicle with it.
- The government did not constructively amend the indictment by relying on the theory that Ullah placed the bomb on a subway while riding it.
- The completed offense of unlawfully delivering, placing, discharging, or detonating an explosive in a public place or public transportation system with intent to cause death or serious bodily injury is categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A).
- Even assuming the Count Six verdict was legally erroneous because the jury may have relied on both proper and improper predicate offenses, the error did not affect Ullah's substantial rights because the evidence established beyond a reasonable doubt that a rational jury would have convicted him based on the completed § 2332f(a)(1)(A) offense.
- The district court did not commit reversible procedural error, and Ullah's sentence was substantively reasonable.
Key quotations
“The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization.” (12)
“To put it plainly, we conclude that the verb “places” in § 1992(a)(2) includes the act of “carrying” a bomb on your person and putting or setting yourself in a location covered by the statute.” (34-35)
“One way someone “places” a “destructive device in, upon, or near . . . a mass transportation vehicle” in the meaning of 18 U.S.C. § 1992(a)(2), is by affixing such a device to one’s person and boarding such a vehicle.” (69-70)
Factual background
Ullah consumed ISIS propaganda, assembled a homemade pipe bomb filled with metal screws, strapped it to his chest, and traveled by subway to a tunnel near the Times Square/42nd Street station and the Port Authority Bus Terminal. He detonated or deflagrated the device during the morning commute, injuring several people and creating a risk of more serious injury. He had copied ISIS slogans and told investigators that he acted on behalf of ISIS and intended to terrorize people and inflict maximum damage.
Procedural history
A jury convicted Ullah on six federal terrorism-related counts arising from his detonation of a homemade pipe bomb in a subway tunnel. The district court denied his motions for judgment of acquittal and imposed concurrent terms, including life sentences on several counts, plus a consecutive thirty-year sentence on Count Six. The Second Circuit reversed Count One for insufficient evidence under the proper construction of 18 U.S.C. § 2339B, affirmed Counts Five and Six and the sentence as otherwise imposed, vacated the Count One sentence, and remanded.
Remand instructions
Reverse the judgment as to Count One, vacate the sentence imposed on Count One, affirm Counts Five and Six and the remainder of the sentence, and remand for further proceedings consistent with the opinion.